Simon v. Usher, 17 N.Y.3d 625 (2011)
CPLR 2103(b)(2)’s five-day extension for service by mail applies to the 15-day period prescribed by CPLR 511(b) for moving to change venue after a demand is served by mail, regardless of whether the motion is a direct response to papers served by the opposing party.
Summary
Plaintiffs brought a medical malpractice action in Bronx County. The Usher defendants served their answer and a demand to change venue to Westchester County by mail. Twenty days later, the Usher defendants moved to change venue. The Supreme Court granted the motion, but the Appellate Division reversed, holding the motion was untimely because it was made 20 days after service of the demand and CPLR 2103(b)(2)’s mailing extension did not apply to CPLR 511. The Court of Appeals reversed, holding that the five-day mailing extension applies to motions to change venue, answering the certified question in the negative.
Facts
Plaintiffs Allen and Barbara Simon commenced a medical malpractice action against defendants in Bronx County Supreme Court on July 17, 2009.
On August 20, 2009, defendants Sol M. Usher, et al. (the Usher defendants) served their verified answers and demands to change venue to Westchester County by mail.
Twenty days later, on September 9, 2009, the Usher defendants moved to change venue to Westchester County, arguing that most parties resided or had principal offices in Westchester County, and the relevant medical care occurred there.
The remaining defendants served their answer on September 3rd and filed an affirmation supporting the motion to change venue on September 15th.
Procedural History
The Supreme Court granted the motion to change venue to Westchester County.
The Appellate Division reversed, denying the motion as untimely because it was made 20 days after service of the demand, concluding that CPLR 2103(b)(2)’s five-day extension did not apply to CPLR 511.
The Appellate Division granted the Usher defendants leave to appeal to the Court of Appeals and certified the question of whether the Appellate Division’s order was properly made.
Issue(s)
Whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail.
Holding
No, the order of the Appellate Division was not properly made. Yes, the five-day extension under CPLR 2103(b)(2) applies to the 15-day period prescribed by CPLR 511(b) because CPLR 2103(b)(2) contains no language restricting its application to instances where a party is directly responding to papers served by an adversary.
Court’s Reasoning
The Court of Appeals began by stating that when construing a statute, it must begin with the language of the statute and “give effect to its plain meaning.” The Court referenced CPLR 511(a), stating that a defendant shall serve a demand for change of venue with the answer, or prior to service of the answer, if the county designated for that purpose is not a proper county.
The Court then cited CPLR 511(b), which permits a defendant to move to change venue within fifteen days after service of the demand, unless the plaintiff consents to the change within five days. CPLR 2103(b)(2) provides that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period.”
The Court reasoned that the defendants, having served their motion papers by mail 20 days after serving their demand to change venue, were entitled to a five-day extension of the 15-day period prescribed in CPLR 511(b).
The Court rejected the plaintiffs’ argument that the defendants could not rely on section 2103(b)(2) because the motion was not a direct response paper. The Court emphasized that Section 2103(b) contains no language restricting its application to instances where a party is responding to papers served by an adversary.
The Court further explained that defendants are permitted to move to change venue only if plaintiffs do not consent in writing within five days after service of the demand, meaning the motion is effectively a response to plaintiffs’ lack of consent. The Court stated, “Simply put, defendants’ motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103 (b) (2)’s five-day extension.”